Page:The English Reports v1 1900.pdf/836

[102] But on the 23d of April 1752, the respondent thought proper to file his bill of review and reversal, against the appellant and the other executors of the said Abdiel Edwards, to impeach the decree of the 30th of June 1720, and the orders of the 28th of June 1726, and the 13th of November 1728, made in pursuance thereof; stating the several proceedings aforesaid, and that he was, by virtue of the testator's will, seised in fee tail of the lands and premises, whereon the said sums of £1284 178. 4½d. and £74 7s. 2d. and interest were decreed to stand a charge; and that the said report of the 6th of December 1725, and the orders of the 28th of June 1726, and the 13th of November 1728, were arroneous; and, as a foundation for reviewing and reversing the same, the respondent by his said bill assigned the several errors following, viz. I. For that the cause was heard on bill and answers; that the will of James Carroll was not proved; and that he the respondent was, at the several hearings of the said cause, a minor. II. For that it appeared that Duncan Cuming, the surviving trustee, was dead at the time of pronouncing the decree of the 28th of June 1726, and that the cause was revived against his executor only, and not against his heir at law; and that the said cause was, after the death of the said Duncan Cuming, proceeded in without his heir at law. III. For that it appeared that the Chief Remembrancer did, under colour of the said decree of the 30th of June 1720, take upon himself, in his report of the 6th of December 1725, to state an account of what was due to the said Abdiel and Catherine, on account of the said yearly sum of £50 and the arrears thereof, with interest for every year's gale, in manner set forth in the eighth schedule to his report; and to state an account of what was due to the said Abdiel and Catherine, on account of the rent paid for the house in Golden-lane, bequeathed to the said Catherine as aforesaid, with interest for the same in manner set forth in the said eighth schedule; and also to state the other accounts in the said schedule mentioned, though it appeared, as he the respondent alledged, that the said Chief Remembrancer had not, by the said decree of the 30th of June 1720, any power or authority given him to state or settle any accounts touching any bequests or legacies; or if he had, that he had not any power or authority to state the same with interest, as stated in the said eighth schedule. IV. For that it appeared that the decree of the 28th of June 1726, and the decree of the 13th of November 1728, were, as to the said sum of £1284 17s. 4½d. founded on that part of the Remembrancer's report of the 6th of December 1725, whereby he stated the accounts mentioned in the said eighth schedule, though it appeared he had no authority to state such accounts, or any of them. V. For that it appeared that part of the said sum of £1284 17s. 4½d. was made up of the arrears of the said annuity of £50 and interest for each gale, according to the said eighth schedule to the said report, and that part thereof was made up of the rent of the said house in Golden-lane bequeathed to the said Catherine, and interest of each gale according to the said eighth schedule; and that part of the said [103] sum of £74 7s. 2d. was also interest for the said arrears of the annuity, and the arrears of rent of the said house in Golden-lane; and that the said sums were, by the decree of the 28th of June 1726, and 13th of November 1728, decreed to stand as a charge on the said lands and premises in manner aforesaid, though the said bill did not seek any interest for the said annuity of £50 or for the arrears of rent of the said house in Golden-lane; and though it appeared by the report, that the said Abdiel Edwards had received out of the testator's personal estate £218 2s. which was applicable to the sum in the said eighth schedule mentioned; and though the said annuity of £50 and the bequest of the house in Golden-lane, were mere voluntary bequests, and a bounty from the testator, and that the said Catherine was otherwise reasonably provided for, and the real estate of the testator was greatly incumbered. And, VI. For that the Remembrancer, under colour of the decree of the 30th of June 1720, had taken upon himself the report of the bequests and legacies in the will mentioned, though he had not any power or authority to report the same; and that the decree of the 13th of November 1728, so far as the same declared that the plaintiff's legacies were well charged on the lands, was founded on that part of the said report.

To this bill the appellant put in a general demurrer, and on the 7th of February 1754, the same came on to be argued before the Lord Chief Baron, and the rest of the Barons of the said Court of Exchequer, and on the 30th of April 1755, the court was pleased to order, that the appellant's said demurrer should be allowed. But